Citation Nr: 0811589 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-01 812 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an initial, compensable rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from May 1948 to April 1952. This appeal to the Board of Veterans' Appeals (Board) arises from a November 2004 rating decision in which the RO, inter alia, denied service connection for tinnitus and for bilateral hearing loss. The veteran filed a notice of disagreement (NOD) in July 2005, and the RO issued a statement of the case (SOC) in December 2005. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in January 2006. In September 2006, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), in Washington, D.C., for additional development. After completing the requested action, the AMC continued the denial of the claim for service connection for tinnitus (as reflected in a September 2007 SSOC). The AMC also granted service connection for bilateral hearing loss and assigned a noncompensable (zero percent) rating (as reflected in a September 2007 rating decision). In a February 2008 post remand brief, the veteran's representative requested a higher initial rating for the veteran's bilateral hearing loss, as well continued to request service connection for tinnitus. Thereafter, the AMC returned these matters to the Board for further appellate consideration. The Board's decision on the claim for service connection for tinnitus is set forth below. The claim for an initial, compensable rating for bilateral hearing loss-for which the veteran has completed the first of two actions needed to perfect an appeal of this matter-is addressed in the remand following the order; this matter is being remanded to RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on his part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim for service connection for tinnitus has been accomplished. 2. Competent, persuasive evidence does not establish the presence of tinnitus. 3. Even if the Board were to accept as credible the veteran's assertions that he currently experiences tinnitus, the only competent, probative opinion on the question of whether there exists a relationship between any current tinnitus and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for tinnitus are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include via the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, September 2004 and October 2006 letters provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for service connection for tinnitus, as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. The October 2006 letter also informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. After issuance of each letter, and opportunity for the veteran to respond, the September 2007 SSOC reflects readjudication of the claim. Hence, while some notice was provided to the veteran after the November 2004 initial adjudication of the claim, the veteran is not shown to be prejudiced by the timing of VCAA-compliant notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the claim for service connection for tinnitus. Pertinent evidence associated with the claims file consists of the veteran's service medical records, as well VA outpatient treatment (VAOPT) records and reports of VA examinations. Also of record and considered in connection with the appeal are written statements s provided by the veteran and by his representative, on his behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2007). Considering the pertinent evidence in light of the above- noted legal authority, the Board finds that the criteria for service connection for tinnitus are not met. Initially, the Board notes that there is no competent, persuasive evidence of record establishing that the veteran has tinnitus. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007). Thus, evidence of current disability is a fundamental requirement for a grant of service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (citing Gilpin v. West, 155 F.3d 1353 (F.3d 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997)). In McClain, the Court held that the requirement of the existence of a current disability is satisfied when a veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. 12 Vet. App. at 321. In this case, in a July 2004 statement in support of claim (VA Form 21-4138) the veteran wrote that his ears "constantly ring since service." However, on December 1952 VA examination shortly after service, the ears and hearing were specifically found to be normal, and the veteran did not then complain of tinnitus. Moreover, the physician who prepared a July 2007 VA examination report wrote that, although the veteran felt an "echo" in his ears, "he reports no tinnitus," thus indicating that the symptoms described and experienced by the veteran did not constitute tinnitus. In addition, the audiologist who prepared the September 2007 VA examination report wrote that there was no history of tinnitus. While the veteran is competent to testify as to observable symptoms such as ringing in his ears, see Falzone v. Brown, 8 Vet. App. 398, 403 (1995), the veteran's testimony in this regard-that he has experienced constant ringing in the ears since service-appears to be contradicted by all of dcocumentary evidence relating to evaluation of the ears-to specifically include the December 1952 and July and September 2007 VA examination reports, which indicated either no ear abnormalities or no tinnitus. The Board further notes that, even if the Board were to accept as credible the veteran's assertions that he currently has tinnitus, the claim for service connection would still have to be denied on the basis of nexus to service. There are no complaints, notations, or diagnoses of tinnitus in the service medical records, and the ears were normal on the March 1952 separation examination, as well as the December 1952 VA examination. The first evidence of possible symptoms of tinnitus is the veteran's complaint of ringing in the ears in the July 2004 statement in support of claim, more than fifty years after service. The Board points out that passage of so many years between discharge from active service and manifestation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Further, the only competent, persuasive opinion addressing whether any tinnitus or similar symptomatology is related to service weighs against the claim. After reviewing the claims file and examining the veteran, the July 2007 examiner concluded that the echo the veteran felt in his ears is due to his allergic rhinitis, which had begun about four or five years previously, and subsequent possible eustachian tube dysfunction. As the July 2007 VA examiner explained the reasons for his opinion following his review of the claims file and examination of the veteran, the Board finds that his opinion-that the echo in the ears felt by the veteran was related to recent allergic rhinitis and not service-is probative of the medical nexus question. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims file and the thoroughness and detail of the opinion); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches). Significantly, neither the veteran nor his representative has identified or even alluded to the existence of any contrary medical opinion-one that would, in fact, support a relationship between any tinnitus or similar symptoms and service. Moreover, neither veteran nor his representative (in argument advanced on the veteran's behalf), can support a finding of medical nexus on the basis of their assertions, alone. Matters of diagnosis and etiology are within the province of trained professionals. Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As laypersons, neither the veteran nor his representative is shown to have the appropriate medical training and expertise to competently render a probative opinion on a medical matter. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (a layman is generally not capable of opining on matters requiring medical knowledge). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the claim for service connection for tinnitus must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002 and Supp. 2007); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for tinnitus is denied. REMAND As noted, in a September 2007 rating decision, the AMC granted service connection for bilateral hearing loss and assigned a noncompensable rating. In the February 2008 post remand brief (p. 3), the veteran's representative requested a higher rating for this disability. The Board finds that this document-filed within one year of notification of the September 2007 rating decision-constitutes a valid NOD as to the initial rating assigned for bilateral hearing loss. See 38 C.F.R. §§ 20.201, 20.302(a) (2007). See also Fenderson v. West, 12 Vet. App. 119 (1999) (discussing claims in which a veteran timely appeals a rating initially assigned when service connection is granted). However, the RO has yet to issue a SOC with respect to this claim, the next step in the appellate process. See 38 C.F.R. § 19.29 (2007); Manlincon v. West, 12 Vet. App. 238, 240- 41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Consequently, this matter must be remanded to the RO for the issuance of a SOC. Id. The Board emphasizes, however, that to obtain appellate review of any issue not currently in appellate status, a perfected appeal must be filed. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2007). Accordingly, this matter is hereby REMANDED to RO, via the AMC, for the following action: 1. The RO must furnish to the veteran and his representative a SOC on the matter of an initial, compensable rating for bilateral hearing loss, along with a VA Form 9, and afford them the appropriate opportunity to submit a substantive appeal perfecting an appeal on that issue. 2. The veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status, a timely appeal must be perfected-here, as regards the initial, compensable rating assigned for tinnitus, within 60 days of the issuance of the SOC on this matter. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs